A fellow solicitor recently remarked to me that she had decided to specialise in commercial law rather than litigation as she disliked the constant butterflies before a hearing. She preferred the cut and thrust of commercial negotiations to court advocacy. Luckily I rarely get the jitters before a hearing
What I do dislike about advocacy is what I call the three submissions rule. A submission is basically your speech to the court, putting forward your client’s case. Advocates, both solicitors and barristers, will tell you that there are three types of submissions.
First, there is the submission that you prepare before the hearing. This will be well-thought out, well -structured and well argued. It is the product of considerable preparation and by the day of the hearing, the advocate will know it backwards and forwards and be very proud of it. How can it possibly fail to persuade the judge of the rightness of your client’s case?
Secondly, there is the submission that you actually give to the court. Most of the time, this will be similar to the first type, but sometimes an advocate has to deliver it to a judge who insists on interrupting, breaking your chain of thought, and who may even have the temerity to disagree with you. This will the require you to think on your feet and to use some mental agility. The submission may therefore suffer.
And the third type of submission? It’s the one you think of 5 minutes after the hearing, which is absolutely brilliant and would have been the pinnacle of your legal career if only you had thought of it beforehand.